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41 Cards in this Set

When it has any tendency to make a fact of consequence more or less probable than it would be without the evidence.

Evidence: When may relevant evidence, not otherwise excluded, be excluded?

If its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.

NO. However, evidence of written notification of a product defect sent by a manufacturer to a purchaser is admissible to prove the existence of the defect.

Evidence: Is evidence of a person's character admissible in civil cases to prove that a person acted in conformity with that character or trait?

No. However, under the Texas Rules, a person accused of conduct involving moral turpitude may introduce evidence of a pertinant trait of his own character.

Evidence: If self-defense has been raised as an issue in a Texas CIVIL assault case, what character evidence may be introduced?

Evidence of the violent character of the alleged victim, which can be rebutted by evidence of the alleged victim's peaceful character.

Evidence: When is evidence of past sexual conduct inadmissible in a tort action arising from a sexual assault?

If the evidence is offered to prove the complainant's charater and thereby establish that the complainant consented on the occasion in question.

Evidence: When may judicial knowledge be taken of adjudicative facts which are not subject to reasonable dispute?

1. Facts are generally known, or
2. verifiably certain by resort to a reliable source.

Evidence: In civil cases, what must the jury do when judicial notice of a fact is taken?

Accept the fact as conclusive.

Evidence: What must an affidavit offered to self-authenticate a business record state?

1. That the records were made in the regular course of the business.
2. It was the regular course of the business to make such records
3. The records were made at or near the time of the event recorded.
4. The records were made by an employee upon personal knowledge or information transmitted by such an employee.

Evidence: What does the TRE state in addition to the federal "best evidence" rule?

Secondary evidence may be admitted to establish the contents of a writing, recording, or photograph when no original is located in Texas.

Evidence: What must an affidavit from a qualified translator state in order for a translation to be admissible?

1. Translater's qualifications.
2. Certifies that the translation is fair and accurate.

Evidence: Under the TRE, what may a party requesting that the remainder of a writing or related offering, allowed to do?

Take over the questioning of the witness for this purpose.

Evidence: When are insane persons not competent to testify?

1. If they were in an "insane condition of mind" at the time they percieved the events about which they will testify, or
2. They are in an insane condition of mind at the time the testimony is offered.

Evidence: What are the general requirements for a witness to be considered competent?

1. Must possess personal knowledge of the matter he is to testify about.
2. Must declare by oath or affirmation that he will testify truthfully.

Evidence: What is required for an insane person or a child to be competent to testify?

1. Must have had the ability to perceive, recall, and narrate events.

Evidence: What does the Dead Man's Rule exclude?

The testimony of a party as to an oral statement by the decedent or the incompetent offered against another party. Testimony as to other transactions with the decedent is admisible.

Evidence: What are the two instances in which a party may testify as to oral statements of the decedent?

1. The oral statement is corroborated.
2. The witness is called at trial by the opposing party to testify as to the oral statement.

Evidence: Who are the only people who may raise the Dead Man's Rule?

1. Executor
2. Heir
3. Other protected party under the statute where judgment may be rendered against him.

Evidence: When may a party lead their own witness?

1. When the witness is first shown as hostile or identified with an adverse party.
2. If necessary to develop the witness's testimony on preliminary matters, to refresh memory, or where the witness is ignorant, illiterate, or a child.

Evidence: What are the basic requirements for expert testimony to be admissible?

1. Reliable.
2. Relevant.

Evidence: What are the requirements for an expert to give an opinion on the issue of departure from accepted standards of medical care in a suit against a physician?

Evidence: In a suit against a health care provider, when may an expert give an opinion on the issue of departure from accepted standards of health care?

1. Practiing same type of health care
2. Knowledge of relevant standards.
3. Qualified on basis of training or experience regarding such standards.

Evidence: When may an expert give an opinion on the issue of causation?

1. If suit is against phyisican or health care provider, expert is a physician.
2. Suit against dentist, expert is dentist or physician.
3. Suit against podiatrist, expert is a podiatrist or physician.

Evidence: When may an expert testify in terms of "negligence" and "proximate cause"?

If the testimony is based on proper legal concepts.

Evidence: Do the Texas Rules allow for court-appointed experts?

NO.

Evidence: What are the limits to cross-examination?

Must be relevant to some issue in the case, or to credibility.

Evidence: What must be done before cross-examination on, or extrinsic evidence of, a prior inconsistent statement will be permitted?

A foundation must be laid.

Evidence: If a witness admits making a prior inconsistent statement, will extrinsic evidence of such be admitted?

No.

Evidence: What type of evidence is a prior inconsistent statement? When is it admissible?

1. Hearsay.
2. Only for impeachment, unless made under oath at a prior trial or deposition.

Evidence: When may a witnes sbe impeached by a criminal conviction?

If the crime was a felony or involved moral turpitude, AND the probative value outweighs the prejudicial effect.

Evidence: How may a prior conviction be proven?

1. Eliciting the information from the witness.
2. Introduction of a public record.

Evidence: May one inquire into or introduce intrinsic evidence of specific prior acts of a witness to prove untruthful character?

No, except for conviction of a crime.

Evidence: What is hearsay?

A statement, other than one made by the declarant, while testifying at a trial or hearing, if offered to prove the truth of the matter directly or indirectly asserted.

Evidence: What does unavailability require in Texas?

The proponent must attempt to take a deposition against an unavailable witness before admitting former testimony.

Evidence: Need a witness be unavailable before an out-of-court interest against a witness's interest be admitted? How has Texas expanded this category?

1. No.
2. Expanded to included statements that tend to make the speaker an object of hatred, ridicule, or disgrace.

Evidence: Do the Texas rules of evidence include the general hearsay exception from the Federal Rules?

That would be a "NO."

Evidence: When a client is a corporation, who is considered to be a represntative of that client?

1. Any person having the authority to obtain legal services or act on advice rendered by a lawyer on the client's behalf.
2. Any person who, for purposes of effectuating legal representation of the client, makes or receives a confidential communication while acting within the scope of employment.

Evidence: To whom does the physician-patient privilege extend in Texas?

Physicians only, not to dentists or nurses unless participating under direction of the physician.

Evidence: What are the exceptions to the husband-wife privilege?

1. Communications made to plan to commit a crime or fraud.
2. Proceedings between spouses.
3. Proceedings to commit a spouse.
4. Criminal domestic violence.

Evidence: To what does the clergy privilege extend to? What are the exceptions?

1. Confidnetial communications made to clergy in his professional character as spiritual advisor.
2. Proceedings for abuse or neglect of a child.

Evidence: How may a party require that an offer of proof be in question and answer form?